In its decision no 1589/2017 the Greek Supreme Court upheld the appeal brought by the Greek company “DPH” against the Dutch company “P”. The Supreme Court held that the Court of Appeals’ decision, which had upheld definitely the lawsuit of “P” against “DPH” for breach of “P”’s essential patents, was wrong in finding they were sufficient reasons for granting patent protection to “P”’s disputed patents under the applicable rule of Greek law setting the conditions for granting patent protection.

Facts

“DPH” had raised against the two disputed patents an objection of nullity due to the lack/ nonexistence of the substantive conditions for the legal protection of “P”’s patents, namely lack of novelty and inventiveness.

The Court of Appeals rejected this objection holding that “the “EFM+ method” described and patented by the two disputed patents constitutes an improvement of the already existing “EFM method”, used in CDs, and constitutes an invention, being new at the time of submission of the relevant applications in relation to the then-known state of the art. As a consequence, the objection of nullity of the disputed patents, as well as the relevant grounds of appeal, must be rejected as factually unfounded…”

The Greek Supreme Court held that, by its above judgment, the Court of Appeals breached a substantive rule of law, as the decision did not contain sufficient reasoning about the existence of the required by Law conditions of the novelty and inventiveness, thus making it impossible for the Supreme Court to check whether the rejection of “DPH”’s objections of nullity was justified or not.

In fact, the Greek Supreme Court found the reasoning of the Court of Appeals’ decision insufficient because “1) it accepts that the protected by the disputed patents invention is new without simultaneously accepting that it constitutes a remarkable/ notable improvement “of the already existing EFM method” and not only a simple improvement, which, however, is not sufficient according to the law”, 2) it does not determine, with a detailed reference to the method’s elements and the practical improvements it brings, how the preexisting EFM method was improved by the new EFM+ method, and 3) it does not clarify whether the disputed EFM+ method has an inventive step, in other words, whether it exceeds technologically regular progress and whether it constitutes an inventive step going beyond what is “expected” use by an average expert”.

Conclusion

The Greek Supreme Court accepted in full one of the grounds of appeal brought by “DPH” and referred the case back to the Court of Appeals. This is a decision of paramount importance since an eventual definite recognition of the nullity of the disputed patents would, due to the fact of the patent being an administrative act, overturn the presumption of legality of the disputed patents erga omnes entailing self-evident consequences for pending trials, claims etc., as expressly stipulated in the grounds of reasoning of this very important decision of the Supreme Court.

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Headed by Eddie Powell of Fladgate LLP, London, and Norman Zivin of Cooper & Dunham LLP, New York, New York, the ILN's Intellectual Property Group provides the platform for enhanced communication, enabling all of its members to easily service the needs of their clients requiring advice on cross-border transactions. Members of the group meet regularly at ILN conferences and industry events, and have collaborated on discussions and publications of mutual interest.